Holder Proposes Changes In Criminal Justice System: Why I don’t buy it

So Eric Holder apparently released this statement prior to a speech he is to give at the ABA conference in SF on 8/12 at 10AM:

“I have mandated a modification of the Justice Department’s charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels, will no longer be charged with offenses that impose draconian mandatory minimum sentences[.]”

What does this mean? How do you decide whether they have ties to large-scale organizations? Can we refute that determination? If the mandatory minimums are “draconian” why are they ok for kingpins?? By its very definition, draconian means excessively harsh…so why is it ever ok to sentence someone to an excessively harsh sentence? In fact doesn’t 18 USC 3553(a) specifically say that the sentence should not be excessively harsh? (“The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.”) WTF?

Dear Eric Holder,

I don’t believe you. I just don’t. In 2009, I was way too pumped after your office released this policy on prosecuting those in compliance with state law in providing patients with medical marijuana:

“The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department’s efforts against narcotics and dangerous drugs, and the Department’s investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” (The Ogden Memorandum.)

Within two years, your Deputy AG, i.e. number 2 in command, James Cole, released a memo to all US Attorneys stating:

“The Department’s view of the efficient use of limited federal resources as articulated in the Ogden Memorandum has not changed. There has, however, been an increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes. For example, within the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately-operated industrial marijuana cultivation centers. Some of these planned facilities have revenue projections of the millions of dollars based on the plant cultivation of tens of thousands of cannabis plants.

The Odgen Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law.” (The Horseshit Memorandum signed by James Cole.)

That shit is infuriating because not only do you 100% change the policy, in the same paragraph, you claim your policies are consistent. Also, how does the size if the dispensary matter at all? Why was the Ogden memo never intended to shield that? I have one word for this memo. It has two syllables. it is a compound word: horseshit.

Sidebar, OTR (off the record), I recently saw Cole speak and thought he 100% misled the audience about the frequency that the US government violates Brady. He proudly claimed it was 1/3 of 1% of 1 million prosecutions. Sounded like a pretty fuckin good stat. Then, I asked how he came to that stat. Simple, they reviewed formal complaints to DC (um, ya who the hell does that? that must be a pretty fucking egregious brady violation to report it to DC) or where the judge or appellate court admonished the AUSA. Such a complaint or admonition occurred in 1% of cases. They determined that only 1/3 of those cases involved actual violations.

The thing about a Brady violation, Mr. Cole, is that by its very nature the defendant usually doesn’t complain about it to DC and the judge usually doesn’t admonish the AUSA, because D doesn’t find out about it. You are the one who knows it happened, not him.

That said, I do not think Brady violations are as widespread and systematically acceptable in the federal system as compared to the state system, at least in California.

Back on the record. I am glad you are trying to do something about the fact that someone can go to prison for more than 5 years for having a lil meth (ok 5 grams). But, I am very fucking skeptical of yo ass.

UPDATE: so I really really heart this post. Here’s my favorite quote: “It looks more like a fairly minor shift dressed up in major rhetorical flourishes.” -Professor Somin. Dear Prof. Somin, you get today’s JJC Heart of Approval. 143.


Published by Jenny Brandt

About Me: sociology, african american studies, chicano/a studies, critical race studies, and criminal law scholar. public school kid from kindergarten-J.D. Former public defender. I am a post-conviction guru. Appeals. Sentencing. Withdraw Pleas. Habeas. Published author in the Criminal Law Bulletin and California Defender. "I do it for the joy it brings, because I'm a joyful girl, because the world owes me nothing, and we owe each other the world." Why I started JJC: My PD buddy suggested it. What and who JJC is inspired by: public defenders I have worked for, with, and next to. my clients who have battled things no one should and are still here. innocence and guilt and everything in between. My coworkers, who fight just as hard as the PDs I love, for many of the same reasons. My husband who was once voted "most Christ like" (every Jewish girl's dream). My Corgi who loves everyone. The constitution. Tabloids. My mom, for giving me a voice. My dad, for teaching me what to say. My brother, for teaching me how to say it.

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